We hear a lot of misconceptions about how the law defines a divorce separation in Virginia. This confusion on defining separation may be because each state has its own variation of what it means to be separated from one’s spouse, and how to do it. In Virginia, it is important for you to understand that there is no such thing as a “legal separation.” This is not something a spouse files for in court if they live in Virginia. Rather, for a separation to occur, two things must be true: 1) One spouse must have an intent to separate from the other spouse permanently; and, 2) there must be physical separation between the spouses. 

Let’s first start with what it means to have the intent to separate. In this context, intent is when one spouse desires to break off the marital relationship with no hope of reconciliation. Only the intent of one spouse is needed. Sometimes, both spouses share a mutual intent to separate. Regardless, this is not the time for beating around the bush and expecting that either spouse has psychic powers. Communication of a spouse’s intent to end the marriage is necessary.

Now, let’s say today, Mr. Smith intends to separate from his spouse and communicates that intent. Does this mean the spouses are separated? Maybe. However, the parties still need to show that they have physically separated from one another, i.e., are living separate and apart. This does not mean everyone has to stop living in the residence. It is possible to live separate and apart under the same roof and many couples do this for economic reasons, but it does mean that the couple can't continue to act as they did when they were a happily married couple. So, when looking, from a legal perspective, on whether a couple has been living separate and apart, courts will look for evidence that the parties are no longer performing the activities they once did when they were married. For example, the couple no longer having regular meals together, sharing the same bedroom together, attending the same events together, may show that the spouses are no longer acting a married couple, and instead living separate and apart. 

In the end, you should care about ensuring you maintain your separation, and the proof of same, because it affects when you can file divorce. For an uncontested/no-fault divorce in Virginia, you must be separated for at least one year. If you don’t have minor children, you can cut your separation time in half to six months, but only if you and your spouse have signed an agreement resolving the issues of your divorce.

Our experienced family law attorneys at Morris Williams LLC – A Family Law Firm can help answer any questions you may have about separation and divorce, so you can be empowered to make the best decisions for your future. Contact us today to schedule a consultation by calling us at (757) 266-9425 or by emailing us at admin@morriswilliamslaw.com.